K.Ganesan v. The Managing Director, Metropolitan Transport Corporation Chennai, Limited

9. For proper appreciation of the rival contentions, it is useful and necessary to notice certain definitions contained in Section 2and Section 47 of the Disabilities Act, 1995 apart from the purpose for which one or other Chapter of the Disabilities Act, 1995 was so https://hcservices.ecourts.gov.in/hcservices/ so enacted, and the relevant portions are quoted hereunder: "Section 2: Definitions – In this Act, unless the context otherwise requires,-- ..... (i) "disability" means--(i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness;......(t) "person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority; Chapter VI: Employment: Section 32: Identification of posts which can be reserved for persons with disabilities..... Chapter VIII: Non-discrimination:....Section 47: Non-discrimination in Governmentemployment--(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he maybe kept on a supernumerary post until a suitable post is available or he attains the age ofsuperannuation, whichever is earlier.

(2) No promotion shall be denied to aperson merely on the ground of his disability: https://hcservices.ecourts.gov.in/hcservices/ Provided that the appropriate Governmentmay, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any as may be specified in such notification, exempt any establishment from the provisions of this section. "10. The aforesaid provisions, Sections 2 and 47, fell for consideration before a Division Bench of this Court in the case ofG.Muthu vs. Mgmt. of T.N. State Transport Corpn. (Madurai) Ltd.,reported in 2007 (I) L.L.J. 9. Therein, exactly similar arguments were made by the contesting parties, as evident from paragraphs 7 and8, relevant portion of which are quoted hereunder: "7...... learned counsel appearing for the appellant has in a nut-shell formulated the following points for our consideration: "(i) .....(ii) The learned single Judge ought to have considered that even though the appellant is unfit due to the disability, should have been retained in service by providing suitable alternative job without resorting to discharge on medical grounds as per Section 47 of the Act.

(iii) Section 47 of the Act, has to be construed independently without reference to the other provisions of the said Act. There is a clear distinction between the words "with disability"found in various provisions under Chapters IV toVII of the Act and the words "acquiring disability" that found place only in Section 47 of the Act. (iv) The disability which has been defined under Section 2(i) of the Act is not exhaustive, especially when Section 2 starts with a phrase"unless the context otherwise requires" which means that the 7th category mentioned in Clause 2(i) alone need not be construed as disability. (v) To give effect to the purpose of the Act, Court should give a helping hand in favour of the disabled persons".8. Per contra, ....... learned counsel appearing for the respondent, in short, submitted https://hcservices.ecourts.gov.in/hcservices/ the following points for our consideration: "(i) Section 2(i) of the Act describes only seven categories of illness as disability and hence, the intention of the Parliament is that only those category of persons mentioned in Section 2(i) of the Act alone are entitled to the benefits under the Act.

(ii) When Section 2(i) of the Act specifies seven categories of illness as disability, thereis no scope to give wider interpretation under Section 47 of the Act. (iii) When the language under Section 47 of the Act is plain and unambiguous, there is no need to give different interpretation. (iv) When Section 33 of the Act contains similar provisos like under Section 47, Section 47cannot be said to be having isolated provisos. (v) Section 56(4) of the said Act deals with persons with severe disability which cannot be compared with mere disability as found in the other provisions of the Act. Hence, if the Parliament intend to give different meaning to disability as found in Section 47, it would have stated so. Further, if the Parliament intended to give elaborate meaning to Section 47, the said provision would not contain the words "who acquires disability" but it would have defined the illness.

(vi) Section 47(i) of the Act merely says"who acquires "a" disability during the service"not who acquires "any" disability. If liberal interpretation is given, every person in the Corporation will try to take advantage of it, since he/she will be getting the same scale of pay without any or much work. (vii) If wider interpretation is given, there will be a long queue claiming disability. Further, liberal interpretation to Section 47 will cause havoc among the employees and there will bedemotivation among the employees. (viii) Paying capacity of the Corporation has to be taken into consideration while deciding the https://hcservices.ecourts.gov.in/hcservices/ case in favour of the disabled persons. " "Having noticed the rival contentions and relevant provisions of the Disabilities Act, 1995, including Sections 2(i), 33 and 47, the Division Bench observed as follows: "19. Having regard to the special features contained in the said Section 47, providing for such a special benefit to an existing employee inan establishment when he acquires a 'disability'as held by us earlier, the application and implementation of the said provision will have tobe ensured independent of various other benefits provided under the various other provisions falling under Chapters IV to VII of the Act which are meant for persons 'with disability'.

Havingregard to the said distinctive features contained in Section 47 of the Act, as compared to the other provisions, we are of the considered opinion that the context in which the benefit has been conferred under Section 47 stands apart from the context of all other provisions where various other benefits have been conferred. In other words, we are of the firm view that the opening set of expressions contained in the definition clause, namely Section 2, which denotes "unless the context otherwise requires" squarely gets attracted to Section 47 and therefore the definition of 'disability' as defined under Section 2(i) cannot be blindly applied to the term'disability' which has been used in Section 47 of the Act. In other words, the term 'disability'used in Section 47 can draw support not only in respect of the defined 'disabilities' as contained in Section 2(i) of the Act but will also encompass such other 'disabilities' which would disable aperson from performing the work which he held immediately prior to acquisition of such'disability' and thereby entitle him to avail the benefits conferred under the said provision for having acquired such a 'disability'.(emphasis supplied) 23.

Therefore, as argued by the learned counsel for the appellant, while the provisions contained in Chapters IV to VII of the Act deals with "persons with disability" Section 47 alone deals with "an employee who acquires a disability during his service". The said provision clearly says that no establishment shall dispense with or https://hcservices.ecourts.gov.in/hcservices/ reduce in rank, an employee who acquires adisability during his service which means that the person who is employed in an establishment when he acquires a disability, his services cannot be dispensed with or there should be any reduction in rank. Further, the proviso to the said Sectionclearly states that if he is not suitable for the post he could be shifted to some other post with the same scale of pay and benefits. If it is not possible, he could be kept on a supernumerary post until a post is available or he attains the age ofsuperannuation whichever is earlier.

The said provision further states that no promotion shall be denied to any person merely on the ground of his disability. Thus, if we apply Section 47 of the said Act, the order of discharge passed by the respondent dated 26.3.2002 has no leg to stand.31. After analysing the entire provisions of the Act and also various decisions cited above, we feel that the Courts cannot shut its eyes if aperson knocks at its door claiming relief under the Act. In a welfare State like India, benefits of benevolent legislation cannot be denied on the ground of mere hyper-technicalities. When the lawmakers have conferred certain privileges on aclass of persons, like in this case to a disabled person, the duty is cast upon the judiciary to oversee that the authorities or the persons to whom such a power is conferred, enforce the same in letter and spirit for which such enactment has been made. In the present case on hand, the appellant has been discharged on the ground of'colour blindness' without providing alternative job as per Section 47 of the Act, which is unjustified and unreasonable.

Hence, the order of the respondent dated March 26, 2002 discharging the appellant on medical grounds has no leg to stand. The appellant is entitled to the protection under Section 47 of the Act. He should have been given a suitable alternative employment with pay protection, instead of discharging him from service on the ground of 'colour blindness'.Viewed from any angle, the order of the learned single Judge dismissing the writ petition on the mere ground of laches without considering the claim of the appellant on merits is liable to beset aside. " 11. The aforesaid view of the Division Bench was reiterated by a https://hcservices.ecourts.gov.in/hcservices/ Division Bench of this Court, by its unreported decision in the case of "Management of Tamil Nadu, State Transport Corporation (VillupuramDivision-III) Limited, Kancheepuram vs. R.Gnanasekaran", in WritAppeal No.860 of 2007, dismissed on 10.7.2007.

That was a case in which the learned single Judge granted the relief in favour of the workman in view of Section 47 of the Disabilities Act, 1995 and the said order was challenged by the Transport Corporation. The DivisionBench upheld the order of the learned single Judge and dismissed the appeal.12. The provisions of Section 2(i) and (t); the provisions under Chapter VI (Sections 32, 33 and 38) and Chapter VIII (Section 47),fell for consideration before the Supreme Court in the case of KunalSingh vs. Union of India, reported in 2003 (4) SCC 524. Havingnoticed the aforesaid provisions, the Supreme Court held as follows: "9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47,which falls in Chapter VIII, deals with an employee, who is already in service and acquires adisability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and'person with disability'.

It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. Anemployee, who acquires disability during hisservice, is sought to be protected under Section47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of the section reads "no establishment shall dispense with, or reduce in rank, an employee who acquiresa disability during his service. " The section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on asupernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

Added to this no promotion https://hcservices.ecourts.gov.in/hcservices/ shall be denied to a person merely on the ground of his disability as is evident from sub-section(2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires adisability during the service. In construing aprovision of a social beneficial enactment thattoo dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. " 13. From a plain reading of Section 2(i) and (t) and the decision of the Courts as referred to above, it would be evident that distinct and different definitions have been given for "disability"and 'person with disability'.

It will be further evident from Chapters VI and VIII of the Disabilities Act, 1995 that while ChapterVI deals with "employment" and Section 32 relates to "identification of posts which can be reserved for persons with disabilities",Chapter VIII relates to "non-discrimination" and Section 47 deals with 'non-discrimination in Government employment', if an employee, after acquiring disability, is not suitable for the post. Therefore, while Section 32 talks of the post for which "persons with disabilities" are entitled for 'employment', Section 47 deals with the post to which the employee is "not suitable for the post after acquiring disability". In this background, the definition"disability", which may be confined to the meaning as defined under Section 2(i), for the purpose of Chapter VI for the initial stage of employment in a service, such disability cannot be confined within the range aforesaid, if an employee is found not suitable for the post after acquiring disability.

This is the reason the DivisionBench of this Court in the case of G.Muthu (supra), while noticingSection 2, which states, "unless the context otherwise requires",came to a conclusion that, ".... the term 'disability' used in Section 47 can draw support not only in respect of the defined'disabilities' as contained in Section 2(i) of the Act, but will also encompass such other 'disabilities' which would disable a person from performing the work which he held immediately prior to acquisition of such 'disability' and thereby entitle him to avail the benefits conferred under the said provision for having acquired such a'disability'. "14. So far as G.O.Ms.No.746, Transport Department, dated2.7.1981, is concerned, it was enacted much prior to the DisabilitiesAct, 1995. The respondent-Transport Corporation cannot derive any https://hcservices.ecourts.gov.in/hcservices/ advantage of the said G.O. after the enactment of the DisabilitiesAct, 1995.15.

The case of Narendra Kumar Chandla vs. State of Haryana, reported in 1994 (4) SCC 460, is a judgment before the enactment of the Disabilities Act, 1995. In the said case, the employee had to undergo surgical operation, but after such operation, he was found physically unfit by a Medical Board, as in the case of the present writ petitioner. Having found the employee able to write, the MedicalBoard suggested him to be considered for any clerical or non-technical post. But it was not accepted by the employer. The SupremeCourt, while allowing the appeal, held as follows: " Article 21 protects the right to livelihoodas an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the post he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties.

Asking the appellant to discharge the duties as a Carrier Attendant is unjust. Since, heis a matriculate, he is eligible for the post ofLDC. For LDC, apart from matriculation, passing in typing test either in Hindi or English at the speed of 15/30 words per minute is necessary. ForClerk, typing generally is not a must. Therefore, the State Electricity Board should relax his passing of the typing test and appoint him as anLDC. Since, on the date when he had unfortunate operation, he was drawing the salary in the pay scale of 1400-2300, his last drawn pay and scale of pay have to be protected. He will also be entitled to arrears of salary. " 16. Even if the said G.O.Ms.No.746, dated 2.7.1981, is taken into consideration, it does not prohibit continuance in service, but the only difference is that it suggested discharge from service and thereafter, fresh appointment, in the place of shifting to other post without termination as prescribed under Section 47 of the Disabilities Act, 1995.17.

In view of our findings as recorded above, we are of the view that the respondent-Transport Corporation, instead of removing theappellant/writ petitioner from service, should have shifted him to other equivalent post, such as Helper, as per Section 47 of the Disabilities Act, 1995 and thereby, they should have granted the benefit of Section 47 of the Disabilities Act, 1995 in favour of theappellant-writ petitioner. https://hcservices.ecourts.gov.in/hcservices/